When I surrendered to federal prison in April 2008, restitution wasn’t my focus. I was a former Bear Stearns and UBS broker facing 18 months behind bars, and honestly, I was terrified. Prison consumed my thoughts. The financial obligation of restitution in white collar cases seemed like something I’d deal with later—after I served my time in prison.
That was shortsighted. And 17 years into this work at White Collar Advice, I can tell you I wasn’t alone in making that mistake.
The government can collect on restitution in white collar cases for up to 20 years after you’re released from prison. Twenty years. That’s two decades of payments, wage garnishments, and financial pressure that doesn’t disappear in bankruptcy. I’ve worked with more than 2,000 people facing government investigations since founding White Collar Advice, and I see the same pattern repeatedly—everyone fixates on avoiding prison time while glossing over the restitution that will follow them long after they’ve served their sentence.
Something major just changed, though. On January 20, 2026, the Supreme Court issued a unanimous decision in Ellingburg v. United States that’s going to reshape how restitution in white collar cases gets handled moving forward. If you’re currently dealing with a government investigation, negotiating a plea, or already sentenced, you need to understand what this means.
Let Me Ask You Something!
Have you ever wondered why restitution orders can reach millions of dollars based on little more than victim statements and a probation officer’s report? Why can judges impose these massive financial penalties without the same constitutional protections you’d get if the government were trying to add another year to your prison sentence?
The Supreme Court just addressed exactly that question.
The Money We’re Actually Talking About
Before I explain the legal shift, let’s talk about real numbers—because that’s what matters when you’re the one writing the checks. According to the U.S. Sentencing Commission, courts imposed nearly $13.5 billion in restitution in 2024 alone. The majority hit white collar offenders: $9 billion in fraud cases, $1.9 billion in money laundering cases, and $1.6 billion in tax cases.
These aren’t abstract government statistics. The average person sentenced for fraud faces $2.2 million in restitution. Money laundering? Around $5 million on average. Even if you’re nowhere near those averages, the median restitution in white collar cases is still $155K for fraud, $862K for money laundering, and $473K for tax crimes.
Think about that for a second. Can you realistically pay off half a million dollars over 20 years while you’re rebuilding your life after a felony conviction, trying to find employment, and supporting your family?
How Restitution Actually Worked Until Last Week
Here’s what frustrated me when I went through this process back in 2008, and what I’ve watched frustrate hundreds of clients since: the government submits victim impact statements to your probation officer. Those statements claim damages—sometimes with minimal documentation backing them up. Your probation officer includes those numbers in your presentence report. Then the judge imposes restitution based largely on those written claims.
You often can’t cross-examine the victims about their claimed losses and if you try to fight it the government will say, “See there he goes again. He is not accepting responsibility.” The Federal Rules of Evidence don’t apply to these hearings. The standard of proof isn’t “beyond a reasonable doubt” like it is for your actual conviction—it’s just “preponderance of the evidence,” which basically means more likely than not. And because you’re so consumed with the prison sentence, you probably aren’t fighting the restitution amount anyway.
I’ve sat across from people in consultations who tell me, “Justin, I just wanted it over with. I didn’t challenge the numbers.” Then five or ten years later, they’re watching their wages get garnished for amounts they can barely afford, and they’re wondering if they should have paid more attention to restitution in white collar cases during sentencing. In my case, after I went viral on TV, the FLU (financial litigation unit) of the United States Attorneys office sued me, despite never missing a payment and being of federal probation for several years.
Until now, there wasn’t much you could do about your restitution.
What the Supreme Court Just Changed
The Ellingburg case started with a straightforward question about collection timelines. A man sentenced for bank robbery in 1996 had a 20-year window for the government to collect restitution, starting from his sentencing date. But Congress later changed the law so that 20-year clock doesn’t start until you’re released from prison—potentially adding years to how long they can chase you for payment.
When the government tried to use this extended timeline on his old sentence, he objected. His argument? The Ex Post Facto Clause of the Constitution prohibits applying new criminal punishments retroactively to conduct that occurred before the law changed. The government eventually agreed with him that restitution is criminal punishment, not a civil debt.
The Supreme Court unanimously confirmed it: restitution under the Mandatory Victims Restitution Act is “plainly criminal punishment.”
Now here’s the question I want you to sit with for a moment: if restitution is criminal punishment, shouldn’t you get the same constitutional protections for a $2 million restitution order as you would for a two-year prison sentence?
Why This Matters More Than You Think
Here’s where things get interesting for anyone dealing with restitution in white collar cases—and where my experience helping people prepare for sentencing becomes critical. If restitution is criminal punishment, then the Sixth Amendment applies. That means you have the right to a jury trial on any facts that increase your punishment.
Justice Gorsuch pointed this out in a 2019 case: going back to the time of Henry VIII, juries had to determine the value of losses before restitution could be ordered. This isn’t some new progressive legal theory. It’s how the law worked for centuries.
What does this mean practically? Restitution amounts should be alleged in your indictment just like any other element of the crime. They need to be proven beyond a reasonable doubt—either to a jury or through your explicit admission in a plea agreement. A judge can’t just accept victim statements and impose millions in restitution based on “more likely than not.” In my case, a couple of last minute victim statements (from people who were not really victims), added $168,828.05 to total restitution owed: that is a big number! Again, when I pushed my lawyers told me to stay quiet and nothing was more important than my freedom. They were wrong.
In sum, it appears the current system for imposing restitution in white collar cases is probably unconstitutional.
Let that sink in.
Why the Ellingburg Decision Is Good News for Defendants
Let me make this crystal clear—this Supreme Court decision is a game-changer for anyone facing restitution in white collar cases. Here’s what just changed in your favor:
The Old System (Likely Unconstitutional):
- Judges decided restitution based on victim statements with minimal documentation
- “Preponderance of evidence” standard—just “more likely than not”
- No ability to cross-examine victims about their claimed losses
- Federal Rules of Evidence didn’t apply to restitution hearings
- Multi-million dollar orders imposed based on letters and probation reports (probation reports most defendants don’t read).
The New System After Ellingburg:
- Restitution amounts must be included in your indictment upfront
- Government must prove losses beyond a reasonable doubt (much higher standard)
- You get a jury trial OR must explicitly agree to the specific amount
- Full constitutional protections now apply to restitution
- Victims can be cross-examined and evidence must be admissible in court
What This Means in Practical Terms:
More Leverage in Negotiations – When prosecutors actually have to prove loss amounts beyond a reasonable doubt, suddenly their case becomes harder to make. That gives you significantly more negotiating power in plea discussions.
Ability to Challenge Existing Orders – If you’ve already been sentenced, you might be able to appeal or collaterally attack your restitution order. The government may have imposed millions on you using a process that’s now considered unconstitutional.
Government’s Burden Just Got Much Heavier – Proving $2 million in losses beyond a reasonable doubt to a jury—with cross-examination and admissible evidence—is completely different than a judge accepting a victim’s written statement at face value.
Due Process Finally Applies – You now get the same constitutional protections for a $2 million restitution order as you would for adding two years to your prison sentence. That’s a fundamental shift.
Real Scrutiny of Victim Claims – No more rubber-stamping inflated loss claims. Every dollar must be proven with real evidence that can withstand cross-examination.
Is this good news for defendants? Absolutely. The question now becomes how aggressively you use these new protections—and that depends entirely on your specific situation.
What You Need to Think About Right Now
If you’re currently under investigation or negotiating a plea deal with your attorney, this changes your strategy. Your lawyer should be objecting to any restitution amount that isn’t properly alleged in the indictment. You need to think very carefully before stipulating to restitution amounts in plea agreements without understanding exactly how those numbers were calculated and whether the government can actually prove them.
Already sentenced? Depending on where you are in your timeline, you might be able to appeal or challenge your restitution order. The Ellingburg decision potentially opens the door for people who are years into paying restitution in white collar cases to contest those orders.
I’m not going to sugarcoat this for you—these challenges will be complex. Courts are still figuring out how to apply Ellingburg in the real world. But after 17 years in this space, working with everyone from Matt Bowyer in the Ohtani case to defendants in major fraud prosecutions, I can tell you this Supreme Court decision is the biggest shift in restitution law I’ve seen.
The Questions Nobody Can Answer Yet
The Supreme Court solved one constitutional problem but created a dozen practical ones that will take years to sort out. How do prosecutors handle fraud cases with hundreds of victims, each claiming different losses? Do juries now need special verdict forms breaking down restitution victim by victim? What happens when loss calculations require complex financial analysis and competing expert witnesses?
And here’s the question that matters most to people I talk with: how far back can you challenge existing restitution orders? Can someone sentenced ten years ago file a motion today? What about someone who’s already paid off their restitution in white collar cases—can they potentially get that money back?
These questions don’t have clear answers yet. But I can guarantee you the courts will be working through them for years, and defendants who act quickly and strategically will have the best shot at relief.
Why You Can’t Ignore This
Listen, I understand where you are mentally. When you’re facing a government investigation, you’re scared. You want to make it go away. You’re willing to agree to almost anything if it means avoiding prison or getting a shorter sentence.
I’ve been there. I sat in that exact spot in 2008, terrified about surrendering to Taft Federal Prison Camp. The experience changed everything—not just my understanding of the federal system, but my entire life trajectory. That’s why I built White Collar Advice after I was released in 2009.
But here’s what I’ve learned from working with over 2,000 people since then: restitution in white collar cases isn’t something you can afford to ignore. Not anymore. The Supreme Court just gave defendants real constitutional protections for the first time in the history of the Mandatory Victims Restitution Act.
That’s a tool you can use—but only if you understand it and act on it strategically.
What Should You Do Next?
If you’re currently dealing with a federal investigation, negotiating a plea, or already sentenced but still within your collection period, you need to talk with someone who understands both the legal implications of Ellingburg and the practical realities of how restitution in white collar cases actually gets imposed and collected.
That’s where our team at White Collar Advice comes in. We’ve been featured in The New York Times, Dr. Phil, CNN, Fox News, and hundreds of other outlets specifically because we understand the federal criminal justice system from the inside.
The lessons we teach come from real experience navigating the federal system. Our motto at White Collar Advice is simple: we don’t ask you to do what we haven’t done ourselves.
Schedule a call with our team today. You can reach us at 949-799-3277 or schedule a consultation. Don’t make the mistake I made in 2008—don’t focus only on the prison sentence and ignore the restitution that will follow you for decades.
The rules just changed. Make sure you understand what that means for your case.
Questions You Might Be Asking
Does the Ellingburg decision apply to my existing restitution order?
Potentially, depending on your specific timeline and circumstances. The decision specifically addressed restitution under the Mandatory Victims Restitution Act, which covers most federal restitution in white collar cases. Whether you can challenge your order depends on factors like when you were sentenced, whether you’re still in your appeal window, and the specific terms of your plea agreement.
Can I challenge restitution I already agreed to in my plea deal?
This is complicated and depends on how your plea agreement was structured. If you explicitly stipulated to a specific restitution amount as part of your plea, challenging it now will be harder—but not necessarily impossible, especially if the amount wasn’t properly proven. This is exactly the kind of strategic question you need to discuss with experienced counsel who understands both criminal law and the practical realities of federal sentencing.
How will prosecutors actually prove restitution amounts to juries now?
That’s one of the unanswered questions. They’ll need to present admissible evidence under the Federal Rules of Evidence and prove losses beyond a reasonable doubt. This likely means victim testimony subject to cross-examination, detailed financial records, and potentially expert witnesses. It’s going to make restitution in white collar cases much more complex and time-consuming to prosecute.
What if I’m already years into paying my restitution?
You should absolutely consult with an attorney about whether challenging your order makes sense. The Ellingburg decision may open doors that didn’t exist before, even for people who’ve been paying for years. Don’t assume it’s too late—at least explore your options with someone who specializes in this area.
About the Author
Justin Paperny
Justin Paperny (hey, I’m writing about myself in the third person!) is an ethics and compliance speaker and founder of White Collar Advice, a national crisis management firm that prepares individuals and companies for government investigations, sentencing, and prison. He is the author of Lessons From Prison, Ethics in Motion, and the upcoming After the Fall. His work has been featured on Dr. Phil, Netflix, CNN, CNBC, Fox News, The Washington Post, and The New York Times.
